A new joint report by the Human Rights Watch (HRW) and American Civil Liberties Union (ACLU) illustrates the effects of government surveillance on journalists and lawyers operating in the US. The report systematically outlines how these surveillance procedures impact freedoms of expression, association, and press as well as the public’s right to access information and to legal counsel.
The Electronic Frontier Foundation welcomes the report as the latest in a series of papers assessing democratic rights and activity in the wake of WikiLeaks and the Snowden revelations. This report, titled With Liberty to Monitor All, adds lawyers and journalists to the list of those experiencing very real, daily harm to their professions.
The 100-page report includes interviews with professionals and government officials. Each section provides the legal framework for government activity as well as the Constitutional amendments at the heart of the surveillance controversy.
Surveillance and Leak Prosecution
By its nature, large-scale surveillance often implicates the interests of many people who are not suspected of any wrongdoing.
The first section explains the apparatus that allows for such large-scale surveillance. HRW points to three primary legal structures: the PATRIOT Act’s Section 215, FISA’s Section 702, and Executive Order 12,333.
The PATRIOT Act made headlines again in June 2013 when The Guardian revealed US authorities were using it to collect Verizon metadata. It was under this context that the government required Verizon to hand over all of its information regarding call lengths, locations, phone numbers, and more.
HRW points to three simultaneous activities that are working to create an inhabitable environment for constitutionally-protected professions: the increased prosecution of leaks, new programs to limit government contact with media, and “over-classification.”
This administration’s Insider Threat Program establishes an atmosphere where government employees are hesitant to discuss even unclassified information for fear of penalty for “suspicious activity.” Another directive requires intelligence employees to submit all press contact to a “pre-publication review” whose rules do not differentiate between classified and unclassified content.
Implications for Journalists and Lawyers
That trend generates fear among both sources and journalists about the consequences of communicating with one another — even about innocuous, unclassified subjects.
Due to revelations illustrating the breadth and scope of government surveillance, journalists are not as confident in their ability to protect their sources. This right is known in the US as “reporter’s privilege” and protects journalists from revealing their sources. International organizations have recognized the necessity of such a right, outlining source anonymity as a fundamental part of the democratic process and the press’ role in government accountability.
Some reporters associated surveillance with heightened leak prosecutions. Contemporary digital surveillance tools make it easy to determine who is in contact with journalists. This one concern has altered the relationship between journalists and their sources (as well as lawyers and their clients).
Several reporters agreed that the impact is substantial, describing the process of obtaining (and keeping) sources as an “uphill battle” that obstructs information flow. Journalists told HRW they were uncomfortable with the evasive activity they’ve been forced to undertake, comparing it to criminal behavior. Journalist Adam Goldman said, “I don’t want the government to force me to act like a spy. I’m not a spy; I’m a journalist.”
The legal community, meanwhile, is confused about the breadth of government surveillance and where to proceed from here. One of the biggest concerns is the absolute lack of protections for clients outside the US. A modified American Bar Association rule now requires lawyers to actively ensure their client communications are secure.
The technical inability to guarantee client privacy is particularly disturbing in federal criminal cases where the US government is the party in opposition. HRW expresses concern that this dynamic can make it difficult to maintain a fair and legal due process. The government’s surveillance capabilities lead to a “massive power asymmetry” that undermines the legal process.
Government Justifications and Responses
Government authorities emphasized the oversight process put in place to ensure the legality of their actions. The oversight process includes Congress, US courts, and the Department of Justice (in the case of FBI surveillance).
Officials discussed minimization procedures, but the report counters that these appear to be weak, broad, and only helpful to US persons. HRW concludes that because very little is known about these procedures, it is difficult to have reasonable discourse on whether they are adequate. Many authorities, however, argued that this should not be impacting how professionals do their work, attributing any changes to “misperception” and “fantasy.”
Overall, officials expressed divided opinions on whether government action is in order. Some officials believed the public’s concerns ought to be addressed even if they are simply the result of misunderstanding, and others stated an interest in reviewing the final HRW report. Others saw no need for reform and “seemed to think the entire project was misguided.”
HRW offered a section of recommendations for the US government. The report suggested authorities narrow the scope of surveillance authorities so as to prevent source and client compromise. It appealed to existing procedures, stating the need to strengthen targeting and minimization procedures. HRW requested that the government disclose information about these surveillance programs to the public, reduce restrictions on official contact with the press, and strengthen protections for national security whistleblowers.
In closing remarks, HRW and ACLU expressed thanks to “those government officials who spoke to us about delicate matters related to ongoing surveillance programs.”